Identity, Reconciliation and Transitional Justice
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Identity, Reconciliation and Transitional Justice

Overcoming Intractability in Divided Societies

Nevin T. Aiken

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eBook - ePub

Identity, Reconciliation and Transitional Justice

Overcoming Intractability in Divided Societies

Nevin T. Aiken

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About This Book

Building upon an interdisciplinary synthesis of recent literature from the fields of transitional justice and conflict transformation, this book introduces a groundbreaking theoretical framework that highlights the critical importance of identity in the relationship between transitional justice and reconciliation in deeply divided societies. Using this framework, Aiken argues that transitional justice interventions will be successful in promoting reconciliation and sustainable peace to the extent that they can help to catalyze those crucial processes of 'social learning' needed to transform the antagonistic relationships and identifications that divide post-conflict societies even after the signing of formal peace agreements. Combining original field research and an extensive series of expert interviews, Aiken applies this social learning model in a comprehensive examination of both the South African Truth and Reconciliation Commission and the uniquely 'decentralized' approach to transitional justice that has emerged in Northern Ireland. By offering new insight into the experiences of these countries, Aiken provides compelling firsthand evidence to suggest that transitional justice interventions can best contribute to post-conflict reconciliation if they not only provide truth and justice for past human rights abuses, but also help to promote contact, dialogue and the amelioration of structural and material inequalities between former antagonists.

Identity, Reconciliation and Transitional Justice makes a timely contribution to debates about how to best understand and address past human rights violations in post-conflict societies, and it offers a valuable resource to students, scholars, practitioners and policymakers dealing with these difficult issues.

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Information

Publisher
Routledge
Year
2013
ISBN
9781135086671
Topic
Law
Edition
1
Chapter 1

Introduction


The field of transitional justice has emerged in recent years as a distinct area of scholarship concerned with the study of the processes and mechanisms used by local communities, states or international actors to provide justice and accountability in the wake of gross violations of human rights. While the modern roots of transitional justice can be traced back to the Nuremberg Trials following the Second World War, the growth in scholarly interest in these mechanisms only began in earnest following an exponential increase in their use in the early 1990s (Hayner 1994; 2002). No longer subject to the exigencies of Cold War politics, a number of states began ‘transitioning’ away from histories of government repression and internal conflict towards commitments—at least in theory—to democracy and sustainable peace. A key component of these transitions for many states has involved finding new and innovative ways to deal with issues of accountability for the legacies of violence, human rights abuses and acts of mass atrocity carried out in the past. In many cases, these legacies involved the commission of crimes such as mass murder, forced ‘disappearances,’ mass rape, war crimes, ethnic cleansing, acts of genocide and other crimes against humanity (Newman 2002).
In part, the drive to deal with these crimes was a function of an emerging norm of accountability within the international community following the Second World War, a norm linked to the formation of the United Nations and the creation of an international human rights regime based on the concept of universal human rights (Donnelly 2003). In essence, this new norm of accountability placed both a moral and a legal duty on states to end impunity and bring to justice individuals who committed gross human rights abuses within their borders, and these obligations were codified over time in an emerging body of international human rights law. Where states were unable or otherwise unwilling to provide justice, the international community itself increasingly assumed this responsibility, as evidenced both by the United Nations' founding of the International Criminal Tribunals for the Former Yugoslavia and Rwanda during the 1990s and the more recent establishment of the International Criminal Court in 2002.
However, the increased use of transitional justice strategies has also been tied to a growing consensus among both scholars and practitioners in the field that such strategies have crucial parts to play in supporting processes of reconciliation in transitional societies. In particular, the literature has recognized that these justice mechanisms are key to achieving sustainable peace in post-conflict societies, as they can help to prevent past abuses from serving as the basis for future returns to violence. Additionally, transitional processes can facilitate societal reconciliation by helping those divided by past violence to put aside their antagonisms and to begin to build new, more conciliatory relationships with one another. Nonetheless, while there is virtual consensus that a relationship exists between transitional justice, reconciliation and sustainable peace, to date the actual processes underlying this relationship have been left surprisingly unspecified and undertheorized in the literature. Indeed, reflecting on the current state of the field of transitional justice, Audrey Chapman (2009: 143) notes that “there is little agreement on how to promote reconciliation or on how to conduct research to assess the status of the reconciliation process in deeply divided societies undergoing transitional justice processes.” In particular, insufficient consideration has been given to studying empirically the linkages between institutional mechanisms and the social and psychological changes that are ultimately necessary to facilitate processes of reconciliation in post-conflict societies. As a direct result, there is still no clear understanding of what best practices might be drawn from existing strategies and adapted to guide policy in future societies seeking to use transitional justice mechanisms to facilitate reconciliation. This book begins to address these critical gaps.
I contend that these gaps can be attributed to two interrelated factors. First, I argue that much of the existing transitional justice literature tends to overlook the collectivized nature of the mass violence, repression and gross human rights violations to which transitional mechanisms respond. As legal scholar Mark Drumbl (2007) has noted, the extraordinary crimes for which transitional justice mechanisms provide accountability are extraordinary not just for the scope of their violence, but for the fact that they are inherently tied to group membership and committed on the basis of collective religious, ethnic, national or political identity. Such violations are almost exclusively carried out in the service of the persecutor's own group, and they target victims not because of their individual characteristics, but because of their perceived membership in a denigrated group. However, when most of the studies in the field consider the appropriate design of justice strategies for addressing these crimes and the ways in which these strategies might contribute to reconciliation in deeply divided societies, attention to the communality of mass violence seems to wane. While the literature suggests that large-scale violence demands different approaches to justice than those normally employed for the rule-breaking behavior of ‘ordinary’ domestic crime, rarely does it reflect on the role that these justice mechanisms must play in directly challenging the collective animosities linked to identity in order to move divided societies toward reconciliation and sustainable peace.1 Accordingly, I contend that in order to uncover the relationship between transitional justice and reconciliation, the literature must undertake a reconsideration of institutional design that begins by engaging the fundamental issues of collective identity at the root of gross human rights violations. Additionally, scholars and practitioners must consider how the strategies employed by transitional institutions might contribute to overcoming antagonisms linked to group identifications that might otherwise threaten to incite future returns to violence.
Second, I suggest that the inherently comparative and institutional focus of much of the existing transitional justice literature may have inadvertently prevented fruitful engagements with other disciplines that have closely investigated issues of identity and reconciliation. In particular, there exists to date very limited dialogue between transitional justice scholars (the majority of whom come from traditions of legal scholarship and human rights advocacy, as well as from practitioner backgrounds) and the growing body of ‘conflict transformation’ scholarship developed by academics working in the related disciplines of political science, peace and conflict studies and social psychology. Recent conflict transformation work engages directly with the complex dynamics of how post-conflict societies are able to move towards more reconciled relations. In particular, it highlights the central role that group or collective identity plays in the commission and perpetuation of ethnonational violence within the state, and indicates the need to transform these identities and their antagonistic relationships in pursuit of intergroup reconciliation and sustainable peace (Lederach 1997; Kelman 1999; 2001; Bar-Tal 2000; Bar-Siman-Tov 2004). However, no attempt has yet been made to synthesize the structural and institutional insights of transitional justice and the social and psychological theories of identity and intergroup reconciliation developed in the conflict transformation literature. This study brings these two bodies of literature into dialogue with one another, contending that such theoretical cross-fertilization and interdisciplinary analysis is required in order to trace the causal path between transitional justice and reconciliation in divided societies.

A social learning model of transitional justice

This book aims to contribute to the burgeoning field of transitional justice by developing a new and innovative theoretical framework that seeks to open the ‘black box’ surrounding the relationship between transitional justice and reconciliation in societies that have been deeply divided by histories of violence between collective identity groups. In so doing, it also helps to provide a much-needed standard by which the relative utility of different justice strategies might be assessed. Following on the work of conflict transformation scholars, this theoretical model contends that the crucial connections between transitional justice and reconciliation can be uncovered by analyzing how transitional mechanisms interact with the ‘politics of identity’ in post-conflict societies. In particular, it investigates how the tactics employed by transitional justice strategies can work to impede or impel the transformation of the antagonistic identifications and relationships between former enemies ultimately required for intergroup reconciliation and sustainable peace (Eriksen 2001; Eder et al. 2002).
I argue that the causal path connecting transitional justice and reconciliation depends on the ability of these tactics to serve as catalysts for ‘social learning’ in transitional societies (Aiken 2010). Social learning is defined here as the set of social and psychological processes by which former enemies come to reassess the hostile perceptions and negative beliefs they once held about one another and to create a more positive system of relationships governing their interactions. These processes are crucial steps on the road to intergroup reconciliation in divided societies, offering the means for former antagonists to be brought together to condemn past abuses and to challenge—and potentially transform—the entrenched mistrust, hostility and prejudice that might otherwise threaten to incite future returns to violence. By building on a synthesis of insights derived from the conflict transformation and transitional justice literatures, this study introduces a new theoretical model outlining a set of key mechanisms of social learning that are widely identified as being necessary, if perhaps not sufficient, conditions for fostering intergroup reconciliation in post-conflict environments. Accordingly, the model proposes these mechanisms of social learning as the central causal processes mediating the link between transitional justice and reconciliation in divided societies.
While this social learning model is taken up in much greater detail in Chapter 3, the key causal mechanisms it examines essentially fall into three broader categories or processes of social learning.2 The first, ‘instrumental learning,’ refers to interventions that focus on rebuilding relationships and perceptions between previously divided groups. The foremost of these instrumental learning mechanisms is the promotion of new forms of positive contact between former antagonists. This argument draws on insights from the long-standing ‘contact hypothesis’ in social psychology that suggests how renewed interaction can facilitate reconciliation by helping to rebuild trust, reduce prejudice, and challenge misperceptions about former enemies. Providing opportunities for sustained positive contact is therefore the first step in moving divided groups in post-conflict societies away from polarized ‘Us versus Them’ identities towards an increasingly inclusive sense of ‘We’ that allows more cooperative relationships to become the norm. The second of these instrumental learning mechanisms is often directly tied to contact, and it involves efforts to renew meaningful dialogue and communication across group boundaries. Nearly all conflict transformation scholars agree that dialogue is vital for breaking down negative beliefs between former enemies and for developing a more inclusive sense of shared identification.
The next broad category of social learning processes falls under what I call ‘socioemotional learning’—efforts centered on reducing grievances, anger and negative beliefs between groups tied to past violence, with the aim of providing both ‘justice’ and ‘truth.’ These interventions must try to reduce the sense of injustice caused by past abuses by acknowledging the worth of victims and the wrongness of the harms done to them, and by in some way also taking action to prevent impunity by holding perpetrators accountable for their actions. In addition to justice, there is a growing consensus that social learning also requires the establishment of a mutually acceptable—or at least mutually tolerable—‘truth’ about what actually transpired during past violence in order to counter any myths or biased memories that may have developed between former antagonists. This is a key step in breaking down polarized identifications and beliefs about the past and about the ‘Other’ that might otherwise sustain societal divisions and provide a ready basis for future violence.
Finally, the third broad category is ‘distributive learning,’ which involves interventions designed to ameliorate structural and material inequalities that may continue to exist between divided groups in post-conflict societies. Distributive learning is tied to the recognition that the social and psychological aspects of social learning must also be matched by concrete changes in the daily lives of former antagonists. These kinds of interventions might include provisions for reparations or compensation for those who experienced severe disadvantage in the past, or broader recommendations and reforms designed to work towards reducing inequality. Left unaddressed, continued social, economic or political inequalities in divided societies have been shown to preclude opportunities for meaningful contact and communication, serve as sources of continued feelings of victimization and injustice, and otherwise hinder the development of social learning and intergroup reconciliation.
In summary, the theoretical framework developed in this study indicates that transitional justice strategies can be most successful in promoting intergroup reconciliation and sustainable peace in post-conflict societies if they actively catalyze instrumental, socioemotional and distributive processes of social learning by encouraging contact, dialogue, ‘truth,’ and ‘justice,’ and by ameliorating material inequalities. Importantly, this model also proposes that these three types of social learning are deeply interrelated and are mutually dependent upon and mutually constitutive of one another. This study therefore suggests that all three of these elements will likely need to be addressed concurrently either within or alongside transitional justice strategies to successfully advance processes of intergroup reconciliation in divided societies.

Research design and methodology

While this contribution to theoretical development is important, the principal aim of this study is to empirically test the ability of the proposed social learning framework to shed new light on the causal linkages between transitional justice and intergroup reconciliation in deeply divided societies. Accordingly, the majority of this book is given over to evaluating the social learning model through a qualitative assessment of the case studies of Northern Ireland and South Africa—an assessment that combines elements of both within-case and cross-case analysis (George and Bennett 2004: 18; Backer 2009). This form of theory-oriented small-n analysis is appropriate to this investigation for a number of reasons. First, conventional quantitative or statistical methods can prove unwieldy in attempting to trace the complicated causal structures at work in intricate processes such as societal reconciliation where direct claims about correlation are easily confounded by interaction effects and path dependence (Ragin 1987; Pierson 2004; Hall 2007). Second, as there currently exists little agreement as to the actual causal connections between transitional justice and reconciliation, limiting the scope of analysis to a smaller number of cases allows for a more intense and focused examination of these connections, and may offer greater opportunity for drawing causal inferences (Chapman 2009). Third, this type of small-n analysis allows both for the kind of in-depth exploration required for assessing complex causal relations, and for comparisons enabling contingent and preliminary generalizations (George and Bennett 2004: 19–32).
This study also employs a research methodology of process-tracing in order to explore the causal path linking transitional justice and intergroup reconciliation in divided societies. Instead of seeking to establish a simple correlation between two variables, process-tracing “attempts to identify the intervening causal process—the causal chain and causal mechanisms— between an independent variable (or variables) and the outcome of the dependent variable” (George and Bennett 2004: 206). More specifically, this study uses a form of process-tracing known as theoretically-oriented syste matic process analysis, which is recognized as being particularly well suited to testing complex causal theories through small-n case study designs (Hall 2007). In essence, as Peter Hall notes, this type of process-tracing begins by “formulating a set of theories that identify the principal causal variables said to conduce to a specific type of outcome to be explained as well as an accompanying account 
 about how those and other variables interact in the causal chain that leads to the outcome” (2004: 6). This initial stage of theory development is taken up in Chapters 2 and 3, in which the social learning model is introduced in detail.
In Chapters 5 through 7, the predictions made regarding the role of instrumental, socioemotional and distributive learning are tested against empirical observations drawn from a comparative assessment of the key case studies of Northern Ireland and South Africa. Process-tracing, which relies on drawing inferences not from the correlative terms of the conventional comparative method but from a detailed examination of the causal chain at work within a particular context, is not dependent to the same extent upon the need to select representative cases for study (Hall 2007: 6). Nevertheless, if contingent generalizations are to be drawn from such studies, it is doubly important that the chosen cases conform to a specific type or subtype of the broader phenomena being explored. Accordingly, this study limits its case selection to deeply divided, post-conflict societies that have implemented transitional justice strategies to deal with their legacies of past violence. This choice therefore necessarily brackets similarly divided countries in which overt intergroup violence has not yet ceased and which may be involved in earlier stages of conflict management or resolution.
While the scale and scope of past violence differs greatly between Northern Ireland and South Africa, both cases nonetheless have histories of protracted conflict and gross human rights violations enacted along the lines of relatively clearly defined group identities that are explored in Chapter 4. In Northern Ireland, the violence of the ‘Troubles’ was primarily committed between two communities divided by a set of overlapping religious and national identifications—namely, Catholics/nationalists and Protestants/unionists.3 In South Africa, under the system of apartheid and the ensuing liber...

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